******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 In reply refer to: 1800C1-KMS 98060071 July 6, 1999 Released: July 7, 1999 CERTIFIED MAIL -- RETURN RECEIPT REQUESTED Aurio A. Matos Permittee, Station WXZX(FM), Culebra, Puerto Rico P. O. Box 847 Mayaguez, PR 00681-0847 Dear Permittee: This letter constitutes a NOTICE OF APPARENT LIABILITY FOR A FORFEITURE pursuant to Section 503(b) of the Communications Act of 1934, as amended (the "Act"), for violations of Section 319(c) of the Act (construction permits), Sections 73.1620 (program tests) and 73.1125 (station main studio location) of the Commission's Rules. This action is taken under authority delegated to the Chief, Mass Media Bureau, pursuant to Section 0.283(c)(3) of the Commission's Rules. Information contained in your license application (File No. BLH-980413KC) indicates that Station WXZX(FM) began operations, pursuant to program test authority, on a channel not authorized by the Commission. In that application, you also indicated that Station WXZX(FM)'s main studio is not located within the city of license or predicted city grade contour of the station, as required by the Commission's main studio rule and policy. Background By the administrative law judge's November 4, 1993, ruling in MM Docket 93-89, you were awarded a permit to construct a station to operate on Channel 293A and serve Culebra, subject, however, to the ultimate outcome of the ongoing consolidated proceeding in MM Docket No. 91-259. See Initial Decision, 8 FCC Rcd 7920, 7921 (November 4, 1993). Subsequently, the Commission modified the allotment to substitute Channel 254A for Channel 293A, and you were ordered to amend your outstanding application (File No. BPH- 911114MS) to specify Channel 254A. See Report and Order in MM Docket No. 91-259, 10 FCC Rcd 6673 (June 22, 1995), recon. denied, 11 FCC Rcd 16392, app. for rev. denied (FCC 99-147), ___ FCC Rcd ___ (June 21, 1999). Thereafter, on August 28, 1997, you filed a modification application to effectuate that channel substitution (File No. BMPH-970828IB), and a new permit was granted by the Commission on December 9, 1997. Efforts to construct the facility ensued, and on April 8th and April 13, 1998, you filed, respectively, a notice pursuant to Section 73.1620 of the Commission's Rules, and a license application (File No. BLH-980413KC), which indicated that you had commenced station operations under program test authority but had done so "on Channel 293A as authorized in BPH-91114MS . . . ," and not on Channel 254A, as ordered by the Commission. In your license application, you also stated that Station WXZX(FM)'s main studio "is not located within the city of license or predicted city grade contour of the station," as required by Section 73.1125 of the Commission's Rules, but submitted that you would seek waiver of the rule to locate the studio in Fajardo, Puerto Rico. By letter dated May 29, 1998, the Mass Media Bureau ("Bureau") dismissed your license application because the station's construction had not been completed in accordance with the terms authorized under the construction permit for Channel 254A, and ordered that you immediately cease operations with the facilities constructed on Channel 293A. Letter from Assistant Chief, Audio Services Division, Mass Media Bureau, to Scott C. Cinnamon, Esq. (WXZX(FM)), May 29, 1998 ("Bureau Letter"). The Bureau further noted that Channel 293A was no longer available because operation on that channel would cause objectionable interference to Station WVIS(FM), Vieques, Puerto Rico, whose facilities had been modified. Thereafter, on June 26, 1998, you amended the license application to specify operation on Channel 254A, in compliance with Section 73.1620 of the Commission's Rules. We inquired concerning these matters by our letter of July 10, 1998, and you submitted responses and supplements dated July 22, 1998, August 6, 1998, and August 18, 1998. Discussion Unauthorized operation. Section 73.1620 of the Commission's Rules, supra, provides, in pertinent part, that program tests may be conducted by permittees, upon appropriate notice to the Commission, and that the facilities tested must have been built in accordance with the terms of the construction permit and the relevant technical rules. In response to our inquiry of July 10, 1998, you indicate that the station began operating on Channel 293A on April 7, 1998, and ceased operating on June 1, 1998, immediately upon the receipt of the Bureau's order and license dismissal letter. You argue that, at the time the license application was filed, your operation of WXZX(FM) on Channel 293A was not improper, and was undertaken in "good faith" because the rulemaking proceeding which proposed changing your authorized frequency from Channel 293A to Channel 254A was not yet final, pending appeal. Moreover, you contend that before you began operating on Channel 293A, you "made certain" that the operation would not cause interference with any other operating station. Alternatively, you contend that because WVIS(FM) has since "elected to return to its pre- R&O operations," WXZX(FM)'s brief operation on Channel 293A, even if unauthorized, created no cognizable harm to any other broadcaster. A broadcast station must be constructed substantially as set forth in its permit in order to avert air navigation hazards and avoid interference to other broadcast stations. See Sections 319(c) of the Act, and 73.1620 of the Commission's Rules, supra; Liability of Equivox, Inc., 87 FCC 2d 1099 (1981). Otherwise, the station is subject to revocation of license or permit, or imposition of a forfeiture. See Secs. 312(a)(2), 319(c); and 503(b)(1)(A) of the Act. At the time you constructed Station WXZX(FM), you were specifically authorized to construct on Channel 254A, not Channel 293A. The existence of an appeal of the channel change was not a legitimate reason for you to have concluded that construction and operation on Channel 293A could be properly commenced prior to receipt of the appropriate Commission authorization. Therefore, it appears that from April 7, 1998, until June 1, 1998, you were in violation of Section 319(c) of the Act and Section 73.1620 of the Commission's Rules by constructing and operating facilities that deviated from those described in the underlying permit, without first obtaining Commission authorization or consent for modification. In prior cases, the Commission has assessed forfeitures of $20,000.00 for unauthorized operations, under circumstances where the facilities actually constructed varied substantially from those specified in the applicable authorization. See Liability of Metro Program Network, Inc., 5 FCC Rcd 2940 (1990); Liability of Triad Broadcasting Company, Inc., 96 FCC 2d 1235 (1994); and Liability of Equivox, Inc., supra. In these instances, the Commission emphasized the potentially serious hazards to air navigation and radio interference created by the unauthorized operations. In this case, we note that the facilities built on Channel 293A, while utilizing an unauthorized frequency, appear to have been otherwise consistent with the technical parameters set forth in the permit for Channel 254A, and that no air hazard was created through either the construction or operation of the nonconforming facility. Furthermore, we recognize that WXZX(FM)'s unauthorized operation on Channel 293A was fully disclosed to the Commission. We nevertheless find that your construction and operation of Station WXZX(FM) on the wrong frequency was serious in nature. You willfully chose to construct and operate on the wrong channel with full knowledge that a frequency change had occurred, and, in so doing, threatened the Commission's orderly administration of a lengthy and complex rulemaking proceeding. Moreover, the duration of the violation, two months, was not insubstantial. Finally, as to your claim you did not cause interference or harm, it is noted that Station WVIS(FM) was able to avoid license cancellation by restoring its broadcast operation in a timely manner through to its own efforts, notwithstanding the temporary preclusion caused by your unauthorized construction and operation on Channel 293A. Lack of interference and WVIS(FM)'s ability to resume broadcasting are not factors mitigating the instant violation. In determining the appropriate forfeiture amount, we note that the Report and Order "In the Matter of the Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines," 12 FCC Rcd 17087 (July 28, 1997) ("Forfeiture Policy Statement"), provides for a forfeiture of $4,000.00 as the base amount for the willful or repeated use of an unauthorized frequency. In the instant case, we believe that this amount must be increased to reflect the full circumstance in which the violation arose, as discussed above, and in view of similar cases involving improper operation stemming from unauthorized station construction. In view of the foregoing, we believe that a forfeiture of $7,500.00 is appropriate. Cf. Liability of Rasa Communications Corp., (MMB, October 16, 1996) (forfeiture of $7,500 for unauthorized operation imposed where deviations were minor, promptly disclosed to the FCC, and quickly rectified by the permittee). Main studio. At the time you constructed Station WXZX(FM), you also built and used a main studio in Fajardo that was outside the station's community of license, Culebra, or the station's principal community contour. You believed that the use of the main studio in Fajardo would prove consistent with the rule because "by using [an] alternative propagation showing that is allowed under the FCC rules, [it might be shown] that the Fajardo studio site was actually within the city grade contour of the station." You concede that the results of the alternative propagation showing, however, ultimately failed to support that contention. Finally, in a supplementary pleading, you submit that, due to the Commission's recent amendment of its main studio rule, WXZX(FM)'s Fajardo site now complies with the Commission's rules, and the need for waiver is moot. You urge that we consider this new development in our evaluation of your compliance with the Commission's main studio rule. While accepting this explanation as true, we cannot ignore that Section 73.1125 of the Commission's Rules, supra, in effect at the time of the violation, specifically requires that FM permittees must construct their main studios within the station's principal community contour, or at a collocated main studio-transmitter site of a commonly-owned AM station licensed to the same principal community, or the community to which the station is licensed to serve, at a point situated outside the principal community contour, or when good cause exists for construction elsewhere, and prior express authorization has been obtained. See Report and Order "In the Matter of Amendment of Sections 73.1125 and 73.1130 of the Commission's Rules, the Main Studio and Program Origination Rules for Radio and Television Broadcast Stations," 2 FCC Rcd 3215 (1987). In this case, you concede, and the record demonstrates, that a prior waiver to locate the main studio in Fajardo was not secured. We recognize that the Commission recently amended its main studio rule. However, even if the Commission's recent amendment has rendered the Fajardo site acceptable without the need for a prospective waiver, that development does not nullify the apparent violation that occurred prior to the effective date of the new main studio rule. Consequently, it appears that you violated the main studio rule on a continuing basis from April 7, 1998 until June 1, 1998. In this connection, the Forfeiture Policy Statement, supra, provides for a forfeiture of $7,000.00 as the base amount for willful or repeated violation of the main studio rule. Accepting as true your claim that the Fajardo site complies with the amended main studio rule, and upon consideration of the full circumstances of the instant violation, we believe that the base forfeiture amount is sufficient, and that further increase is unwarranted. Sanctions In view of the above, pursuant to Section 503(b) of the Communications Act of 1934, as amended, you, Aurio A. Matos, are hereby advised of your apparent liability for a forfeiture of Fourteen Thousand Five Hundred Dollars ($14,500.00) for your willful and repeated violation of Section 319(c) of the Communications Act of 1934, as amended, and Sections 73.1620 and 73.1125 of the Commission's Rules, on the dates specified above. In regard to this forfeiture, you are afforded a period of thirty (30) days from the date of this Notice "to show, in writing, why a forfeiture penalty should not be imposed or pay the forfeiture. Any showing as to why the forfeiture should not be imposed or reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R. Sec. 1.80(f)(3). Other relevant provisions of Section 1.80 are summarized in the attachment to this Notice. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau cc: Scott Cinnamon, Esq. J. Richard Carr, Esq. Vincent J. Curtis, Esq. John P. Bankson, Jr., Esq. James L. Oyster, Esq.